Ninth Circuit Easily Rejects Jawboning Claims Against YouTube–Doe v. Google

November 19, 2022 · by · in Content Regulation

This is one of the many MAGA lawsuits over content moderation allegedly biased against conservatives–in this case, by YouTube as part of its crackdown on conspiracy theories. The plaintiffs argued that government jawboning turned YouTube into a state actor. The district court dismissed the case, and the Ninth Circuit breezily shuts this down.

Government Compulsion. The various events and government statements “lack force of law, rendering them incapable of coercing YouTube to do much of anything.” For example, the plaintiffs point to a House resolution condemning QAnon, but (1) it didn’t mention YouTube by name, and (2) as a resolution, it doesn’t have any legal consequence. Also, the compulsion theory is only actionable against the government, not against the compelled private entities.

Government Nexus. This prong looks for things like the government conspiring with a private actor to do something the government can’t otherwise do. Nothing in this situation comes close to that. For example, there’s no evidence the House resolution prompted YouTube to change its behavior.

The Ninth Circuit dismisses with prejudice because it can’t see how the plaintiffs could cure the deficiencies.

Two implications of note. First, jawboning cases against Internet services are a legal dead-end. It’s a classic example of MAGA trying to weaponize the rule of law to produce a fundamentally unlawful result. Second, Pres. Trump’s lawsuit against Twitter, which is now pending with the Ninth Circuit, has devolved into a fairly routine jawboning case, and this summary disposition previews how Trump’s case will ignominiously fail too.

Case citation: Doe v. Google LLC, 2022 WL 17077497 (9th Cir. Nov. 18, 2022)

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